Is the Maternity Benefits Amendment Act, 2017 Relevant for NGOs Under Delhi Shop Establishment Act?

Please confirm whether this MB Amendment Act, 2017 is applicable for NGOs that come under the Delhi Shop Establishment Act.

Also need to confirm whether this MB Amendment Act 2017 is applicable for NGOs that are only registered under the Bombay Public Trust Act, 1950?

Application of the Maternity Benefit Act

Here is the extract from the Maternity Benefit Act. You may go through this and find for yourself where your NGO fits within these provisions and definitions:

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2. Application of Act. -- (1) It applies, in the first instance, to every establishment being a factory, mine, or plantation [including any such establishment belonging to the Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic, and other performances]:

Provided that the State Government may, with the approval of the Central Government, after giving not less than two months' notice of its intention of doing so, by notification.

(2) [Save as otherwise provided in sections 5A and 5B, nothing contained in this Act] shall apply to any factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (84 of 1948), apply for the time being.

Definitions

3. Definitions. -- In this Act, unless the context otherwise requires, --

(a) "appropriate Government" means in relation to an establishment being a mine [or an establishment where persons are employed for the exhibition of equestrian, acrobatic, and other performances], the Central Government and in relation to any other establishment, the State Government;

(b) "child" includes a still-born child;

(c) "delivery" means the birth of a child;

(d) "employer" means –

(i) in relation to an establishment which is under the control of the Government, a person or authority appointed by the Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department;

(ii) in relation to an establishment which is under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority;

(iii) in any other case, the person who has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person;

(e) "establishment" means –

(i) a factory;

(ii) a mine;

(iii) a plantation;

(iv) an establishment wherein persons are employed for the exhibition of equestrian, acrobatics, and other performances; or

(v) an establishment to which the provisions of this Act have been declared under sub-section (4) of section 2 to be applicable;

(f) "factory" means a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);

(g) "Inspector" means an Inspector appointed under section 14;

(h) "maternity benefit" means the payment referred to in sub-section (1) of section 5;

(i) "mine" means a mine as defined in clause (j) of section 2 of the Mines Act, 1952 (35 of 1952);

(j) "miscarriage" means expulsion of the contents of a pregnant uterus at any period prior to or during the twenty-sixth week of pregnancy but does not include any miscarriage the causing of which is punishable under the Indian Penal Code (45 of 1860);

(k) "plantation" means a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951);

(l) "prescribed" means prescribed by rules made under this Act;

(m) "State Government" in relation to a Union territory, means the Administrator thereof;

(n) "wages" means all remuneration paid or payable in cash to a woman, if the terms of the contract of employment, express or implied, were fulfilled and includes –

(1) such cash allowances (including dearness allowance and house rent allowance) as a woman is for the time being entitled to;

(2) incentive bonus; and

(3) the money value of the concessional supply of foodgrains and other articles,

but does not include –

(i) any bonus other than incentive bonus;

(ii) overtime earnings and any deduction or payment made on account of fines;

(iii) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force; and

(iv) any gratuity payable on the termination of service;

(o) "woman" means a woman employed, whether directly or through any agency, for wages in any establishment.

NOTES. – Sec 3 (f). – A factory does not include a mine subject to the operation of the Mines Act, 1952, or a railway running-shed.

Sec. 3 (j) – The definition of miscarriage is similar to the definition as given in Sec. 2 (14-B) of the Employees' State Insurance Act, 1948.

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Incidentally, you have to find out whether your NGO is covered under the ESI Corp. Act. If yes, then the Maternity Benefit Act also applies.

Dear Ms. Sapna,

Please clarify what you mean by "NGO, Comes under Delhi Shops & Establishments Act." If you are already registered under the Shops & Establishments Act, refer to the Registration Certificate with specific reference to the column "Nature of Business." What is your strength? What are all the labor laws already applied to know about the applicability of the Maternity Benefit Act?

Sir, I think some clarification has been issued by the Ministry of Labour & Employment via their circular dated 12-04-2017. A copy of the same is attached herewith. Please see if this clarification serves any purpose regarding your doubts as mentioned above.

Dear Mr. Harsh, thank you for sharing the useful article/notification/guideline. This was much needed since the amendment has been processed through many steps and was a frequently asked topic in the forum (the day it was issued in "Draft" format on 08th Aug 2016).

Dear Ms. Sapna, as rightly said by Mr. Srinath, if you have obtained the Delhi Shops and Establishment Registration, then there is no question of whether it is applicable to you or not. You have to follow all rules under the registration unless you have obtained any specific "exemption" from the department/government.

If ten or more persons are or were employed on any day of the preceding twelve months, then the Act is applicable to you as well.

Is ESIC registration compulsory for NGOs registered under the Bombay Public Trust Act, 1950?

Sir, under the ESI Act of 1948, there are separate provisions for coverage, and it is not dependent upon any other law. It would be even better if you could contact the concerned social security officer of ESIC in your area to determine whether your unit is subject to this Act.

Thank you.